Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South

Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.

Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.

In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)

The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.

Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.

3 Responses

If only we weren’t burdened by the stringent nature of the criminal conviction process, right? My sarcasm is fully intentional and, I hope, poignant.

The idea that juries may not be unanimous in the verdict-delivery-process is horrendous and smells like the “Tyranny of the Majority.” Peer pressure and coercion don’t end after high school graduation, apparently we are encouraged to participate in these practices as adults when another person’s future is on the line.

If heard by SCOTUS, who knows what the outcome may be? However, I would very much enjoy seeing a SCOTUS ruling on non-unanimous jury convictions. What protections do we have against this policy?

Americans are constitutionally guaranteed the right to a speedy trial before a jury of our peers. However, are we guaranteed that this jury must agree? Can a state, or the federal government, claim to accept verdicts by simple majority?

When federal conviction rates are above 96% (2008: Bureau of Justice Statistics), as they are now, I fail to see the need for making convictions easier. Over 90% of federal defendants plead guilty to avoid trial because evidentiary and prosecutorial rules in federal court make convictions almost assured. Do we want to keep the door open for non-unanimous jury verdicts either by affirming them or tacitly condoning them?